Adoption Promotion Legislation in the 105th Congress

November 24, 1997
97-491

97-491 EPW
Updated November 24, 1997
CRS Report for Congress
Received through the CRS Web
Adoption Promotion Legislation
in the 105th Congress
Karen Spar
Education and Public Welfare Division
Summary
President Clinton signed the Adoption and Safe Families Act into law on
November 19, 1997, after the House and Senate approved final versions of the
legislation on November 13. The new law (P.L. 105-89) is intended to promote
adoption or other permanent arrangements for foster children who are unable to return
home, and to make general improvements in the nation’s child welfare system. The
legislation responds to concerns that children are remaining in foster care unnecessarily
long, that their adoption rate is low, and that additional safeguards are needed to ensure
their safety. The House initially passed legislation (H.R. 867) on April 30 by a vote of
416-5, and the Senate passed an amended version on November 8. A compromise
version was passed on November 13, by a vote of 406-7 in the House and by unanimous
consent in the Senate. This report discusses the final version of the legislation, as
enacted into law
Background
More than half a million children are currently in foster care. Although the number
of foster children has almost doubled since the mid-1980s, the number of these children
who are adopted each year has remained at approximately 20,000 throughout this period.
Most children who enter foster care eventually return to their families, but concern has
developed in recent years about the growing number of children who cannot return home.
This concern prompted the 105th Congress to consider legislation with two primary goals:
(1) to ensure that consideration of children’s safety is paramount in child welfare
decisions, so that children are not returned to unsafe homes; and (2) to ensure that
necessary legal procedures occur expeditiously, so that children may be placed for
adoption or another permanent arrangement quickly and do not linger in foster care.
In December 1996, President Clinton directed the Department of Health and Human
Services (HHS) to develop recommendations to double the number of foster child
adoptions by 2002. HHS released its report, Adoption 2002, on February 14, 1997
(http://www.acf.dhhs.gov/programs/cb/special/adoption.htm).
Meanwhile, related
proposals were being developed in Congress. On April 30, the House passed the
Adoption Promotion Act (H.R. 867) by a vote of 416-5, and a bipartisan group of
Congressional Research Service ˜ The Library of Congress
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Senators introduced the Safe Adoptions and Family Environments (SAFE) Act in March
(S. 511). The SAFE Act was superceded by another bipartisan package that was
introduced in the Senate on September 18, called the Promotion of Adoption, Safety, and
Support for Abused and Neglected Children (PASS) Act (S. 1195). The PASS Act, with
some changes from the introduced version, was approved by the full Senate on November
8, as a substitute for the House-passed version of H.R. 867. Differences between the
House and Senate were resolved, and a final, amended version of H.R. 867 — renamed
the Adoption and Safe Families Act of 1997 — was passed on November 13 by a vote of
406-7 in the House and by unanimous consent in the Senate. President Clinton signed the
bill into law on November 19, 1997 (P.L. 105-89).
Most provisions in the new law amend Titles IV-B and IV-E of the Social Security
Act, which authorize grants to states for child welfare activities, including foster care and
adoption assistance. To receive federal funds (almost $5 billion in FY1998), states must
comply with requirements designed to ensure that services are provided to the families
of children who are at risk, so that children can remain safely with their families or return
home after they have been placed in foster care. States also must conduct administrative
and court hearings on every child’s case according to a prescribed timetable, and establish
a permanent placement plan for each child.
Title IV-B and IV-E were enacted in their current form in 1980 (P.L. 96-272).
However, concern has developed in recent years that some states and judges have
interpreted the federal law as requiring family preservation and reunification at all costs,
including in cases where the child’s health or safety was in jeopardy. The new law is
intended to clarify federal policy to ensure safety for all children who come into contact
with the child welfare system, to expedite permanency for foster children, and to promote
adoption for those children who cannot safely return home.
The Adoption and Safe Families Act establishes significant new procedural
requirements to promote safety and expedite permanency, which the Congressional
Budget Office (CBO) has estimated will save federal money by shortening the time that
some children spend in foster care. At the same time, the new law also contains some
spending provisions. These include financial incentive payments to states that increase
their numbers of adoptions from foster care; a requirement that states provide health
insurance coverage to special needs adopted children who are not eligible for federal
subsidies; a provision that continues eligibility for federal subsidies to special needs
children whose adoptions are disrupted; and a reauthorization and expansion of the family
preservation program under Title IV-B. CBO has estimated the net cost of P.L. 105-89
at $40 million over a 5-year period. To offset these costs, the law reduces spending for
the contingency fund under the Temporary Assistance for Needy Families (TANF) block
grant.
Child Safety and “Reasonable Efforts” to Preserve Families
The Adoption and Safe Families Act requires that a child’s health and safety be of
“paramount” concern in any efforts made by the state to preserve or reunify the child’s
family. States continue to be required to make “reasonable efforts” to avoid the need to
place children in foster care, and to return them home if they are removed, but the new
law establishes exceptions to this requirement. Specifically, states are not required to
make efforts to preserve or reunify a family if a court finds that a parent had killed another
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of their children, or committed felony assault against the child or a sibling, or if their
parental rights to another child had previously been involuntarily terminated.
In addition, the new law establishes that efforts to preserve or reunify a family are
not required if the court finds that a parent had subjected the child to “aggravated
circumstances.” Each state will define these circumstances in state law, although the
Adoption and Safe Families Act cites abandonment, torture, chronic abuse, and sexual
abuse as examples. Moreover, the new law does not preclude individual judges from
using their discretion to protect a child’s health and safety in any case, regardless of
whether the specific circumstances are cited in federal law.
To further promote safety, the new law adds references to child safety in various
sections of Titles IV-B and IV-E. The legislation also requires that states conduct
criminal background checks for all prospective foster or adoptive parents, and deny
approval to anyone who has ever been convicted of felony child abuse or neglect, spousal
abuse, a crime against children (including child pornography), or a violent crime including
rape, sexual assault, or homicide. In addition, states must deny approval to anyone with
a felony conviction for physical assault, battery, or a drug-related offense, if the felony
occurred within the past five years. States may opt out of the criminal record check
requirement either through a letter from the Governor to the Secretary of Health and
Human Services (HHS), or through legislation enacted by the state legislature.
Finally, the new law requires states to develop standards to ensure quality services
that protect the health and safety of children in foster care with public and private
agencies. These standards are in addition to licensing requirements already established
under Title IV-E.
“Reasonable Efforts” to Promote Adoption
If efforts to preserve or reunify a family are not required because the court has found
that an exception to this requirement exists, as described above, the Adoption and Safe
Families Act requires that a permanency hearing (formerly called “dispositional” hearing)
be held for the child within 30 days of that court finding. In these cases, or whenever a
child’s permanency plan is adoption or another alternative to family reunification, the new
law requires states to make reasonable efforts to place the child in a timely manner in
accordance with the permanency plan, which may include placement for adoption, with
a guardian, or in another planned, permanent arrangement. States also must document
specific efforts made to place the child for adoption. These provisions are intended to
shorten the length of time that children spend in foster care, once a court has determined
that family reunification is not feasible or likely.
The new law also specifies that efforts to preserve or reunify a family can be made
concurrently with efforts to place the child for adoption or guardianship. This practice
is referred to as “concurrent planning” and allows states to develop a back-up plan, to
save time in case efforts to restore the original family are unsuccessful.
The Adoption and Safe Families Act also contains provisions intended to eliminate
interjurisdictional issues as a potential barrier to a child’s adoption. First, the new law
requires states to assure in their Title IV-B plans that they will make effective use of
cross-jurisdictional resources to facilitate timely adoptions for waiting children. The law
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also denies federal foster care and adoption assistance funding to any state that is found
to have denied or delayed a child’s adoptive placement if an approved family is available
outside the child’s jurisdiction, or has denied a fair hearing to anyone who alleges a
violation of this provision. In addition, the Adoption and Safe Families Act directs the
General Accounting Office (GAO) to conduct a study of interjurisdictional adoption
issues, including the implementation of the Interstate Compact on the Placement of
Children, and to report findings to Congress within a year.
Permanency Hearings and Termination of Parental Rights
Prior to enactment of the Adoption and Safe Families Act, federal law required that
every foster child must have a judicial hearing, known as a “dispositional” hearing, within
18 months of their placement in care to determine their future status. The new law
requires this hearing to occur within 12 months of placement, and changes the name to
“permanency” hearing. The law revises the list of permanency goals (which had included
long-term foster care) to include returning home, referral for adoption and termination of
parental rights, guardianship, placement with a relative, or, as a last resort, another
planned, permanent living arrangement. P.L. 105-89 also requires that foster parents,
preadoptive parents, and relative caregivers be given notice and an opportunity to be heard
at reviews and hearings.
One of the most significant provisions of the new law requires states to initiate
proceedings to terminate parental rights (TPR) for certain foster children; there was no
comparable provision in prior law. Specifically, P.L. 105-89 requires states to initiate
TPR proceedings for children who have been in foster care for 15 of the most recent 22
months, or for infants determined under state law to be abandoned, or in any case where
the court has found that a parent has killed another of their children or committed felony
assault against the child or a sibling. States can opt not to initiate such proceedings if the
child is in a relative’s care, or if the state agency has documented in the child’s case plan
a compelling reason to determine that TPR would not be in the child’s best interest, or if
the state had not provided necessary services to the family.
For children entering foster care after the new law’s date of enactment, states must
comply with this provision no later than three months after the end of their first legislative
session that begins after the date of enactment. For children who already were in care on
the date of enactment, states may phase in compliance but must be in compliance for all
children by no later than 18 months after the end of the legislative session. For purposes
of the TPR provision and the 12-month permanency hearing, children will be considered
to have entered foster care on the first date that the court finds they have been subjected
to child abuse or neglect, or 60 days after their removal from home, whichever occurs
first.
Adoption Incentive Payments
The Adoption and Safe Families Act intends to promote adoption by providing
incentive payments to states to increase their number of foster child adoptions, with
additional incentives for the adoption of foster children with special needs. As in the
existing adoption assistance program, which provides ongoing subsidies to adoptive
parents of special needs children, the definition of special needs is determined by each
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state, and may include age, ethnic group, or membership in a sibling group, in addition
to disability or a medical condition that makes a child difficult to place for adoption. This
adoption incentive provision was a key recommendation in the Administration’s Adoption
2002. Incentive payments will equal $4,000 for each foster child whose adoption is
finalized (over a certain base level) and $6,000 for each special needs adoption above the
base level. The new law authorizes $20 million annually for these incentive payments,
for FY1999 through FY2003. In addition, discretionary budget caps are adjusted to help
ensure that these funds will actually be appropriated.
The new legislation also authorizes HHS to provide technical assistance to help
states increase their number of foster child adoptions, and authorizes appropriations of
$10 million annually for each of FY1998-FY2000. HHS must use half of the funds that
are appropriated to provide technical assistance to the courts.
Eligibility for Adoption and Medical Assistance
Under Title IV-E, states may receive open-ended federal entitlement funds for part
of the costs of operating adoption assistance programs for special needs children. Under
these programs, parents who adopt children with special needs may receive monthly
adoption subsidies through agreements with their state. The federal government helps
states with part of these costs, but only for children who meet certain eligibility
requirements; specifically, children whose biological parents would have been eligible for
the former Aid to Families with Dependent Children (AFDC) program, or who are
eligible for Supplemental Security Income (SSI). Adoptive parents of children with
special needs who do not meet these criteria may receive subsidies through state-funded
programs.
Children who are eligible for federal adoption assistance are automatically eligible
for Medicaid. However, states are not required (although they have the option) to provide
Medicaid coverage to special needs adopted children who do not meet the AFDC or SSI
eligibility criteria for federal adoption subsidies. The Adoption and Safe Families Act
requires states to provide health insurance coverage to these children, if they have special
needs for medical, mental health, or rehabilitative care. This health coverage may be
through Medicaid or another program, as long as benefits are comparable. In addition,
to be eligible for adoption incentive payments (described above) in FY2000 or FY2001,
states must provide health coverage to any special needs child whose adoptive parents
have entered into an adoption assistance agreement with any state. States also must
comply with this provision to be eligible for a waiver demonstration (described below).
The Adoption and Safe Families Act also contains a provision intended to ensure that
children who had once been eligible for federally subsidized adoption assistance will
continue to be eligible in a subsequent adoption, if their initial adoption is disrupted or
their adoptive parents die, regardless of whether they would have qualified for AFDC or
SSI based on the income and assets of their first adoptive family.
Reauthorization and Renaming of Family Preservation Program
The new law reauthorizes and changes the name of the existing family preservation
program, which is a capped entitlement under subpart 2 of Title IV-B and was scheduled
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to expire at the end of FY1998. Under the new law, the program is renamed Promoting
Safe and Stable Families. This program was funded at $240 million in FY1997 and $255
million in FY1998, and is reauthorized under P.L. 105-89 at: $275 million in FY1999;
$295 million in FY2000; and $305 million in FY2001. Prior law required states to devote
significant expenditures to each of two types of services: family preservation; and
community-based family support. The Adoption and Safe Families Act adds two more
categories: time-limited family reunification services provided during the 15-month
period after a child is removed from home; and adoption promotion and support services.
State Accountability for Performance
The Adoption and Safe Families Act also aims to increase the accountability of states
for the performance of their child welfare programs. The legislation requires HHS, in
consultation with public officials and child welfare advocates, to develop outcome
measures in various categories (i.e., number of foster care placements and adoptions,
length of stay in foster care), and to rate state performance according to these measures
in an annual report. The first annual report is due by May 1, 1999.
In addition, the new law directs HHS to conduct a study and develop
recommendations for a performance-based financial incentive system under Titles IV-B
and IV-E. To the extent feasible, this system will be based on the annual performance
report described above. HHS must submit a progress report to Congress within 6 months
of the new law’s enactment, and a final report within 15 months.
State Innovation and Demonstration
Under legislation enacted in 1994, HHS is authorized to approve up to 10 states to
receive waivers from Title IV-B and IV-E rules in order to conduct demonstration
projects. The Adoption and Safe Families Act allows HHS to approve an additional 10
demonstrations in each of FYs 1998 through 2002. Federal law does not mandate specific
goals for these demonstrations. However, the new law directs the Secretary to give
consideration to any applications received with the following purposes: (1) to identify and
address barriers to adoption for foster children; (2) to identify and address parental
substance abuse problems that result in foster care placement for children, including
through placement of children together with their parents in appropriate residential
treatment facilities; and (3) to address kinship care.
Kinship Care
The Adoption and Safe Families Act also requires HHS to submit a report to
Congress by June 1, 1999, on the issue of kinship care, including recommendations for
policy in this area. This report will be developed with the assistance of an advisory panel,
which the Secretary must convene by June 1, 1998.
Additional Provisions
Additional provisions in P.L. 105-89: give child welfare agencies access to the
Federal Parent Locator Service; clarify eligibility for the independent living program;
establish a sense of Congress in favor of standby guardianship laws; and make a statement
of intent about “reasonable” parenting. Unless specified otherwise, the new law takes
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effect upon enactment, except that, where enactment of new state laws is required, states
have until three months after their first legislative session to comply.